Monday, July 8, 2013

Revisiting Roe, Privacy, And Involuntary Sterilization

This could be subtitled: “That Awkward
Moment When You Realize Involuntary Sterilization Still Happens In America.”

A few months ago, I wrote this
piece about the Israeli government’s admission that it had given Ethiopian
women Depo-Provera injections without their knowledge or consent, thereby
rendering them temporarily sterile. Back then, I argued that in America,
state-sponsored involuntary sterilization would violate the Supreme Court’s
decision in Roe v. Wade,
410 U.S. 113 (1973), which held that the constitutional right to privacy
extended to decisions involving reproductive choice. As Roe explained:

The Constitution
does not explicitly mention any right of privacy. In a line of decisions,
however, going back perhaps as far as Union
Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has
recognized that a right of personal privacy, or a guarantee of certain areas or
zones of privacy, does exist under the Constitution. … These decisions make it
clear that only personal rights that can be deemed “fundamental” or “implicit
in the concept of ordered liberty,” Palko
v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of
personal privacy. They also make it clear that the right has some extension to
activities relating to marriage, Loving
v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542
(1942); contraception, Eisenstadt
v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring
in result); family relationships, Prince
v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education,
Pierce v. Society of Sisters, 268
U.S. 510, 535 (1925), Meyer v.
Nebraska, supra.

410 U.S. at 152-152.

Because its previous decisions had
extended the right to privacy to include “activities relating to marriage …
procreation … contraception … family relationships … and childrearing and
education,” the Court concluded that:

[The] right of
privacy … is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy. The
detriment that the State would impose upon the pregnant woman by denying this
choice altogether is
apparent.

410 U.S. at 153 (emphasis supplied).

So, the right described in Roe isn’t merely the right to have a particular
medical procedure; it is the right to decide whether or not to have such a
procedure in the first instance. More broadly, the right to privacy described
in Roe and (you’ll pardon the
expression) its progeny encompasses the right to make fundamental decisions
about all “activities” that fall within constitutionally protected “zones of
privacy,” such as procreation, contraception and the like. Meaning, of course,
that the state cannot decide for a woman – or a man – whether she (or he)
should be sterilized involuntarily.

In the piece I wrote a few months back
I also pointed out that as absurd as it may seem, in the days before Roe forced sterilizations actually happened right here
in these United States. Consider, for example, Buck v. Bell,
247 U.S. 200 (1927), in which “the Circuit Court of Amherst County, [Virginia,]
[ordered] … the superintendent of the State Colony for Epileptics and Feeble
Minded … to perform the operation of salpingectomy upon Carrie Buck,” (whom the
Supreme Court described as “a feeble-minded white woman”) “for the purpose of
making her sterile.” 247 U.S. at 205. The Honorable Justice Oliver Wendell
Holmes upheld that decision, because, he said, “[t]hree generations of
imbeciles are enough.”Id. at 207. See also Skinner v.
Oklahoma, 316 U.S. 535 (1942), which struck down Oklahoma’s Habitual
Criminal Sterilization Act on equal protection grounds, but did not overrule Buck
v. Bell.

So, I said, thank goodness for Roe, because that case, one would think, closed the
door on such abominations. I mean, after Roe, decisions relating to procreation (and the
ability to procreate) are protected by the right to privacy … so the government
can’t make those decisions for you, or me, or anybody else. Right?

Imagine my surprise, then, when I
learned that between 2006 and 2010, doctors working for the California prison
system performed tubal ligations on 148 prisoners without following proper
legal procedures and often through coercion (a story which was discussed
today on the amTWiB radio program, as a matter of fact).

At
least 148 women received tubal ligations in violation of prison rules during
those five years – and there are perhaps 100 more dating back to the late
1990s, according to state documents and interviews.

…

The women were
signed up for the surgery while they were pregnant and housed at either the
California Institution for Women in Corona or Valley State Prison for Women in
Chowchilla, which is now a men’s prison.

Former
inmates and prisoner advocates maintain that prison medical staff coerced the
women, targeting those deemed likely to return to prison in the future.

Crystal Nguyen,
a former Valley State Prison inmate who worked in the prison’s infirmary during
2007, said she often overheard medical staff asking inmates who had served
multiple prison terms to agree to be sterilized.

The article goes on to detail a number
of situations in which female patients were pressured to agree to tubal
ligations – including one woman who “was pressured by a doctor while sedated
and strapped to a surgical table for a C-section” (she “resisted,” according to
the story). Moreover, in all 148 cases, the tubal ligations were performed
without going through procedural steps that were specifically designed to
ensure that prisoners weren’t coerced or otherwise forced to undergo
sterilizations without full consent.

The fallout from the California story
remains to be seen. Ideally, the state will tighten its procedures to ensure that
the fundamental privacy rights of its inmates are respected. The story does,
however, reinforce a very important aspect of Roe, and one that’s generally overlooked in the debate
over reproductive rights: It doesn’t merely enable women to get abortions; it
prevents the government from forcing reproductive decisions on individuals.
Under Roe, the government can
no more compel a particular reproductive choice – say abortion, or
sterilization – than it can prevent you from making that choice. No matter how
you feel about abortion itself, that, it seems to me, is a good thing.